Supremes sympathize in copyright immortality case

Not that it matters

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Updated The US Supreme Court heard arguments in Eldred v. Ashcroft Wednesday, where the infamous Mickey Mouse copyright extension law of 1998 was challenged and defended.

Stanford University law professor Lawrence Lessig presented the challenge, asserting that Congress' continual extensions of copyright amounted to a violation of language in the Constitution making it clear that copyrights and patents are to be granted for 'limited times'. Extending the 'limited time' both proactively and retroactively, Lessig argued, amounts to a perpetual copyright, and this is clearly not allowed.

The actual language goes like this: Congress shall have the power to ... promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Lessig argued that Congress' power to make copyright law is limited by the paramount mission of promoting useful arts and sciences. Put simply, he's saying that promoting artistic and scientific productivity is the end, and copyrights and patents are the means to it. Therefore, if Congress extends copyrights to such lengths that the opposite should occur, then Congress is acting unconstitutionally and needs its bottom spanked by the courts.

"I can find a lot of fault with what Congress did here," Justice O'Connor said, but added that "it's very difficult to find the basis in the Constitution for saying" that Congress has no right to set copyright terms "longer than one might think desirable."

"If this is limited, then there is no limit," Lessig said.

But it was not clear why this particular extension is the one that crosses the line (a line which has not been drawn in any specific place by any specific Constitutional language). Perhaps the line is farther out; perhaps it was crossed decades ago.

Justice Breyer seemed to worry about that. He was unsure whether in overturning the Mickey Mouse law the court would be obliged to apply the same principles to previous extensions. This would essentially obligate the court to make policy, which is not its job. "The chaos that would ensue would be horrendous," he remarked.

Lessig replied that the 1976 extension was distinct enough from the 1998 law that this should not necessarily be a concern.

Solicitor General Theodore Olson argued for the government that Congress enjoys a "broad grant of power" from the Constitution and made "essentially legislative judgments" when it passed the Mickey Mouse law. He said that Congress could consider other needs besides the strict 'promotion of art and science', such as the need to harmonize US law with European law, which the Mickey Act does.

But unless a line is drawn somewhere, Lessig's argument, that copyright becomes perpetual in fact, seems solid. "Just as a limited-edition print is not limited if you print a new one each time a customer leaves the store, so a limited term is not limited if it is extended," he noted.

So when Olson came before the bench Justice O'Connor wanted to know if "there [is] any limiting principle out there that would ever kick in."

Only an explicitly perpetual copyright would be unconstitutional, Olson reckoned, or periods so extremely long that they would amount to ''the functional equivalent'' of perpetual copyright.

Of course the Solicitor General enjoys an advantage like the Iron Chef. He knows the arena and he learns from experience what the judges like and dislike. The challenger is almost always coming in cold. This was perhaps illustrated when Lessig made a rather underdeveloped appeal to the First Amendment which the Justices neglected to take up with any evident enthusiasm. Perhaps hammering away and expanding on a single issue would have been more to his advantage. Surely there is a First Amendment issue here; excessive copyright protection is a burden on free speech and at some point it becomes Constitutionally intolerable, but surely that's an entire argument in itself.

Lessig's chief argument is that excessive extension amounts to perpetual copyright, and that's undeniable. The question, though, is at what point this transformation takes place. The Constitution offers no specific guidance, and I'd expect the court to punt on that unless, as Justice O'Connor indicated, 'longer than one might desire' can somehow become a standard for judicial review, or unless the court agrees that the Mickey law is the straw that breaks the camel's back and creates, as Olson put it, the 'functional equivalent' of perpetual copyright. I wouldn't be too optimistic on either count.

Another important argument for Lessig is that the Constitution creates a direct relationship between copyright and the paramount job of promoting creative works. If good creative output can't be attributed to the length of copyright, then the length is inappropriate.

But Justice Souter doubted that a "causal connection" exists between the incentive and the final output. Aren't copyright extensions part of a "general scheme that tends to induce creation?" he wondered.

That's a very important question, I think, and it's an area where Lessig makes an assumption: 'copyright in, art and science out'. Too little copyright, bad production; too much copyright, bad production. Thus the legal length of copyright must be optimized for creative output in order for the law to be constitutional (as opposed to simply 'good').

I think the language of the Constitution defies this reading. It says Congress 'has the power to' (not 'shall' -- we'll get to that in a moment) "promote" creative works. It does not say 'guarantee the optimal production' of creative works, though Lessig seems to be reading it as if it did. He's saying (among other things) that if Congress passes a copyright law that fails to result in a measurable increase of creativity, then that law is unconstitutional. I don't think it is. I would say it's broken, certainly, but not unconstitutional. After all, the United States is plagued by thousands of laws which are both broken and perfectly constitutional. It's the Supreme Court's job to fix the unconstitutional ones; it's Congress' job to fix the broken ones.

The other item which makes Souter hard to resist is the language, "Congress shall have the power..." The Constitution was written with great care by highly literate people who meant exactly what they said. Where the Constitution says that "Congress shall assemble at least once in every year", it means precisely that. Where the Constitution says that "Congress shall have the power" to do something, it means that Congress has a privilege superior to the states in the matter. It does not actually hold Congress responsible for the current state of creativity in the USA. Certainly the privilege wouldn't exist if the framers hadn't intended for it to be exercised; and indeed it was, promptly in 1790, a year after the First Congress initially convened (1789-1791). At that time the legislators reckoned fourteen years an appropriate term of copyright. They have since modified that reckoning numerous times.

Much as I wish it weren't so, the Constitution clearly gives Congress the right to be wrong about copyright extensions. I'm going to bet that the court will acknowledge that the Mickey Mouse law is a problem, but not their problem, and punt. It's a legislative issue to be handled via the legislative process, they'll say. And I think that's right. It's just a pity that the wrong people have the money to get things done on Capitol Hill. But then, that's not the Supreme Court's problem either. ®

Update

Reader Tony Tovar brings up an excellent and quite relevant point: "I think you failed to mention another argument," he writes. "But I've also heard it said that retroactively extending copyright has no effect on the 'promotion' -- read 'creation' -- of existing works. So, a strict reading of the Constitution could construe that Congress does not have the right to confer additional copyright on existing works. I don't think the Supreme Court can slice-and-dice laws, so if they rule that the retroactive part is unconstitutional, they might overturn the whole Act."

Lessig had in fact brought up the issue, arguing basically that retroactive copyright extensions have no value in promoting new works. At one point he mentioned the Internet in that context, saying it had brought about a "fundamentally...changed circumstance" in copyright by making the public domain so accessible to the masses.

This is true, I think; but I'm not convinced it's a positive change for the reading public. For one thing, billions of people have no computers or Internet access, a fact that's unlikely to change any time soon. Lessig is really promoting and privileging Internet publishing, a thing that stands to accommodate a small, elite fraction of the world's people. (Don't even try to tell me that some poor person in Togo is going to read all of Gibbon at an Internet cafe. This is pure pie-in-the-sky fantasy. It would undoubtedly cost far more than a paperback collection.)

Actually, the Mickey Act provides a positive financial incentive for authors and publishers to keep works in print longer by virtue of its retroactive term extensions. It's hard to make money off a printed work that's in the public domain unless it's required reading at uni (e.g., Shakespeare, Donne, Fielding, etc.) or immensely popular (e.g., the Bible). If works pass sooner into the public domain, less popular and lesser-known ones might end up available only on the Internet, and that would be a slap in the face to the billions of people who either prefer to curl up with a real book (like me) or have no computers or Internet access. Yes, there are public libraries, but waiting your turn for an out-of-print book can be quite frustrating.

I was delighted some months back to find Robert Graves' superb memoir "Good-Bye to All That" available in a cheap paperback edition, which I bought happily. Were it not still under copyright, it might not be available, except on the Net. I'd far sooner read the hard copy, thank you very much -- so much handier on the subway. --tcg